How the Litigation System is Designed to Screw You

Whether your split is amicable or not, if you're separating from a mentally stable, otherwise reasonable person, there are steps you can take to keep it from going completely off the rails. Conversely, there are ways that the system is set up to be sure that it does... and all those ways benefit the system itself.

When I first split from my husband I consulted a divorce attorney—a litigator. I wanted to educate myself on my rights before going into the process. California is a no-fault state, so no matter who did what to whom, the laws are pretty clear: 50% of all assets or debts incurred during the marriage would be mine. The state even has a calculating program called the DissoMaster for figuring out support based on percentage of custody and the incomes of both parties.

Makes sense, right? My ex made more money than I did (I was a stay-at-home-mom, so he actually made all the money), so he would have to pay me child support and spousal support for a time.

Except then the litigator began to show me that if we slid the custody bar of the DissoMaster over, my support would increase. More custody for me meant more money from my ex. When I told the attorney that I wanted my son to see his father 50% of the time, that he was a great dad, and that I didn't want to take my child away from him, he scoffed.

He began throwing out scenarios in which I could disparage my ex in court so that I could get more custody, thus more money.

In the process, the attorney was going to make gobs of money off of me and the fight he was about to stage between me and my ex.

I wasn't having it. My ex and I were getting a divorce, sure, but he's a great, dedicated dad, and I wasn't about this.

On a panel of divorce attorneys that included litigators, mediators and collaborative attorneys, a collaborative attorney I work with asked a litigator, "How do you know when to stop litigating?" His answer: "When the money runs out." In other words, litigators will find reasons to fight until there is no more money to fight over—or be paid with. At which point they'll likely come to an agreement that could have been accepted months prior.

I walked out of that attorney's office with a basic understanding of what I was legally entitled to, and a horrible taste in my mouth about where this man wanted to take my divorce.

Not once did he ask what I wanted for my child.

Not once did he ask what kind of relationship I wanted to create with my ex, a man I'd be tethered to, like it or not, for the rest of my life.

According to the Los Angeles Collaborative Family Law Association website, "Collaborative Practice is a voluntary out-of-court process for you and your spouse to resolve the legal, financial and emotional issues of your divorce or separation."

And the first question our collaborative attorney asked us was, "Do you want to put your child in the middle of your divorce, or at the center of it?"

I believe that everything is a choice. You can choose to make your divorce bitter and ugly, or you can choose to have it be collaborative and peaceful. That doesn't mean you will always agree on things; you won't. But it means that you have chosen a perspective that is healthy and productive, rather than one that is proven to be destructive. And, in my opinion, when you have children, you don't really have a choice.

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